Fuller v. Dep't of Transp.

251 Cal. Rptr. 3d 549, 38 Cal. App. 5th 1034
CourtCalifornia Court of Appeal, 5th District
DecidedAugust 20, 2019
Docket2d Civil No. B287689
StatusPublished
Cited by24 cases

This text of 251 Cal. Rptr. 3d 549 (Fuller v. Dep't of Transp.) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fuller v. Dep't of Transp., 251 Cal. Rptr. 3d 549, 38 Cal. App. 5th 1034 (Cal. Ct. App. 2019).

Opinion

YEGAN, J.

*1036A public entity is not liable for an injury caused by a dangerous condition of public property unless the injury was proximately caused by the dangerous condition and the dangerous condition created a reasonably foreseeable risk of the kind of injury which *553was incurred. ( Gov. Code, § 8351 ; Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105, 190 Cal.Rptr.3d 850, 353 P.3d 773 ( Cordova ).) Here a motorist with a willful and wanton disregard for the safety of others, recklessly tried to pass a tour bus on State Route 1 near Hearst Castle. He struck a car driven by appellant, Peter Fuller, head-on. Appellant was severely injured and his wife was killed. The jury returned a special verdict that a dangerous condition of public property existed but did not "create a reasonably foreseeable risk that this kind of incident would occur." (Italics added.) Appellant claims the special verdict is fatally inconsistent warranting a new trial. We disagree and affirm the judgment in favor of State of California, Department of Transportation (Caltrans).

Facts and Procedural History

This head-on collision occurred on State Route 1 near Vista Point 1, about two miles south of Hearst Castle. The two-lane highway runs north/south, is *1037S-shaped with a slight slope, and has a dashed center line that permits motorists to pass slower vehicles when it is safe to do so. Jeffrey LaChance drove this portion of highway four times a day, Monday through Friday for 19 years, commuting to work and dropping his wife off at work at Hearst Castle. On the afternoon of October 10, 2011, LaChance was going northbound and tried to pass a 45-foot tour bus after it crossed Pico Creek Bridge. Appellant was driving southbound at 55 miles per hour, the posted speed limit. LaChance failed to pass the tour bus and struck appellant's Toyota head-on, a few feet north of Vista Point 1, a highway scenic turnout.

After the collision, LaChance told CHP Officer Paul Budrow that he could see ¾ a mile ahead and appellant's Toyota suddenly appeared in front of him. LaChance pled no contest to misdemeanor reckless driving causing injury and vehicular manslaughter. ( Veh. Code, § 23105, subd. (a) ; Pen. Code, § 192, subd. (c)(2).)

Appellant sued Caltrans. His theory was premised upon two dangerous conditions: (1) the road striping north of Pico Creek Bridge allowed passing despite an alleged dip or blind spot in the road that limited sight distance and obscured visibility, and (2) passing should have been prohibited at the scenic turnout (Vista Point 1) because it was like an intersection and created traffic conflicts when vehicles turned into the scenic turnout.

The evidence showed that there were no dips in the road and the road striping conformed with federal and state highway standards requiring a 900 foot minimum sight distance for safe passing. Using a road survey and the highway as-built plans, traffic safety expert Kim Nystrom opined that the sight distance, looking north from where LaChance started to pass the bus, was 1,500 feet. That was consistent with the bus driver's and LaChance's statements that there was a clear line of sight. LaChance did not say anything about a dip in the road or limited visibility when he spoke to CHP Officer Budrow after the collision. A third motorist, Elizabeth Rizzo, was following the Fuller car and saw LaChance pull into the southbound lane. Rizzo said it was "way too late" for LaChance to safely pass the bus. Rizzo was "[a] hundred percent" sure a collision would occur the moment LaChance pulled into the southbound lane to make the pass.

The jury was provided a special verdict form that was drafted by appellant and asked: "1. Was the property in a dangerous condition at the time of the incident ?

*554[¶] If your answer to Question No. 1 is 'yes,' then answer Question No. 2." Question No. 2 asked: "Did the dangerous condition create a reasonably foreseeable risk that this kind of incident would occur?" (See Judicial Council Cal. Civ. Jury Instructions (2018) 1 CACI,VF-1100, p. 687.) The jury answered "Yes" to Question No. 1 (10-2) and "No" to Question *1038No. 2 (12-0), finding there was a dangerous condition of public property, but the dangerous condition did not create a reasonably foreseeable risk that this kind of incident would occur.2 Appellant did not object to the verdict form that he drafted. Nor did he ask the jury for clarification before the verdict was entered.

Claimed Inconsistent Jury Verdict

Appellant contends the special verdict findings are fatally inconsistent and not supported by the evidence. (See Oxford v. Foster Wheeler LLC (2009) 177 Cal.App.4th 700, 716, 99 Cal.Rptr.3d 418 ( Oxford ) [verdict is inconsistent when it is beyond the possibility of reconciliation under any possible application of evidence and instructions].) Caltrans asserts that appellant forfeited the inconsistent verdict claim by not objecting or seeking clarification before the verdict was entered. No objection was required to preserve the issue. ( Lambert v. General Motors (1998) 67 Cal.App.4th 1179, 1182, 79 Cal.Rptr.2d 657 ; Zagami , supra , 160 Cal.App.4th at p. 1093, fn. 6, 74 Cal.Rptr.3d 235.)

On appeal, we review the special verdict de novo. ( Singh v. Southland Stone , U.S.A., Inc. (2010) 186 Cal.App.4th 338, 358, 112 Cal.Rptr.3d 455.) "A special verdict is inconsistent if there is no possibility of reconciling its findings with each other. [Citation.]" ( Id. at p. 357, 112 Cal.Rptr.3d 455.) If the special verdict is not "hopelessly ambiguous," the court may interpret the verdict " 'from its language considered in connection with the pleadings, evidence and instructions,' " and counsel's argument to the jury. ( Woodcock v. Fontana Scaffolding & Equip. Co.

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Cite This Page — Counsel Stack

Bluebook (online)
251 Cal. Rptr. 3d 549, 38 Cal. App. 5th 1034, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fuller-v-dept-of-transp-calctapp5d-2019.